Wilkinson v. United States/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

When petitioner was summoned before a subcommittee of the House Committee on Un-American Activities in Atlanta, Georgia, the Staff Director for the Committee made the following statement to him:

'It is the information of the committee or the suggestion of     the committee that in anticipation of the hearings here in      Atlanta, Georgia, you were sent to this area by the Communist      Party for the purpose of developing a hostile sentiment to      this committee and to its work for the purpose of undertaking      to bring pressure upon the United States Congress to preclude      these particular hearings. Indeed it is the fact that you     were not even subpenaed for these particular hearings until      we learned that you were in town for that very purpose and      that you were not subpenaed to appear before this committee      until you had actually registered in the hotel here in      Atlanta.

'Now, sir, if you will tell this committee whether or not,     while you are under oath, you are now a Communist, we intend      to pursue that area of inquiry and undertake to solicit from      you information respecting your activities as a Communist on      behalf of the Communist Party, which is tied up directly with      the Kremlin; your activities from the standpoint of      propaganda; your activities from the standpoint of      undertaking to destroy the Federal Bureau of Investigation      and the Committee on Un-American Activities, because indeed this committee issued a report entitled      'Operation Abolition,' in which we told something, the      information we then possessed, respecting the efforts of the      Emergency Civil Liberties Committee, of which you are the      guiding light, to destroy the F.B.I. and discredit the      director of the F.B.I. and to undertake to hamstring the work      of this Committee on Un-American Activities.

'So if you will answer that principal question, I intend to     pursue the other questions with you to solicit information      which would be of interest-which will be of vital necessity,      indeed-to this committee in undertaking to develop      legislation to protect the United States of America under      whose flag you, sir, have protection.

'Now please answer the question: Are you now a member of the     Communist Party?'

Petitioner answered, 'I am refusing to answer any questions of this committee.'

After a further explanation he was directed to answer. He replied:

'I have the utmost respect for the broad powers which the     Congress of the United States must have to carry on its      investigations for legislative purposes. However, the United     States Supreme Court has held that, broad as these powers may      be, the Congress cannot investigate into an area where it      cannot legislate, and this committee tends, by its mandate      and by its practices, to investigate into precisely those      areas of free speech, religion, peaceful association and      assembly, and the press, wherein it cannot legislate and      therefore it cannot investigate.'

The Committee is authorized by the Resolution governing it to make investigations of 'the extent, character, and objects of un-American propaganda activities in the United States.'

If it is 'un-American' to criticize, impeach, and berate the Committee and to seek to have it abolished, then the Committee acted within the scope of its authority in asking the questions. But we take a dangerous leap when we reach the conclusion that criticism of the Committee was within the scope of the Resolution.

Criticism of government finds sanctuary in several portions of the First Amendment. It is part of the right free speech. It embraces freedom of the press. Can editors be summoned before the Committee and be made to account for their editorials denouncing the Committee, its tactics, its practices, its policies? If petitioner can be questioned concerning his opposition to the Committee, then I see no reason why editors are immune. The list of editors will be long as is evident from the editorial protests against the Committee's activities, including its recent film, Operation Abolition.

The First Amendment rights involved here are more than freedom of speech and press. Bringing people together in peaceable assemblies is in the same category. De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278. 'The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.' Id., 299 U.S. at page 364, 57 S.Ct. at page 260. The right to petition 'for a redress of grievances' is also part of the First Amendment; it too is fundamental to 'the very idea of a government, republican in form.' United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588. Chief Justice Hughes, speaking for the Court in the De Jonge case involving communist activities no more nor less lawful than those charged here, said:

'The greater the importance of safeguarding the community     from incitements to the overthrow of our institutions by      force and violence, the more imperative is the need to      preserve inviolate the constitutional rights of free speech,      free press and free assembly in order to maintain the      opportunity for free political discussion, to the end that      government may be responsive to the will of the people and that changes,      if desired, may be obtained by peaceful means. Therein lies     the security of the Republic, the very foundation of      constitutional government.' De Jonge v. State of Oregon,      supra, 299 U.S. at page 365, 57 S.Ct. at page 260.

These are reasons why I would construe the Resolution narrowly so as to exclude criticism of the Committee. We have customarily done just that, insisting that if 'an inquiry of dubious limits' is to be found in an Act or Resolution, Congress should unequivocally authorize it. United States v. Rumely, 345 U.S. 41, 46, 73 S.Ct. 543, 546, 97 L.Ed. 770; United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; Watkins v. United States, 354 U.S. 178, 198, 77 S.Ct. 1173, 1184, 1 L.Ed.2d 1273.

The indictment charged only the failure to answer the one question, 'Are you now a member of the Communist Party?' That question in other contexts might well have been appropriate. We have here, however, an investigation whose central aim was finding out what criticism a citizen was making of the Government. That was the gist of the case presented to the jury.

We cannot allow this man to go to prison for 12 months unless we hold that an investigation of those who criticize the Un-American Activities Committee was both authorized and constitutional. I cannot read the Resolution as authorizing that kind of investigation without assuming that the Congress intended to flout the First Amendment.